NC's constitution doesn't promise 'fair' elections

In Wednesday's state Supreme Court hearing on a legal challenge to state voting maps, Chief Justice Paul Newby brought up a point that may come as a surprise.

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Laura Leslie, WRAL capitol bureau chief,
Bryan Anderson, WRAL statehouse reporter
RALEIGH, N.C. — In Wednesday’s state Supreme Court hearing on a legal challenge to state voting maps, Chief Justice Paul Newby brought up a point that may come as a surprise: North Carolina’s constitution does not explicitly require elections to be fair.

Attorneys for plaintiffs in the case were discussing a decision by the Pennsylvania Supreme Court to strike down voting maps in that state because the maps were alleged to have violated Pennsylvania’s constitutional requirement of “free and equal” elections.

Newby pointed out that the North Carolina Constitution doesn’t say that.

“We have ‘free.’ We don't have ‘fair.’ They have ‘free and fair, correct?” Newby asked, apparently misquoting the Pennsylvania constitution.

“That is true,” responded Zach Schauf, a lawyer representing the N.C. League of Conservation Voters, one of three plaintiffs whose cases were combined in the ongoing legal challenge.

Article 1, Section 10 of North Carolina’s constitution says elections “shall be free.” Section 9 says they should be “frequent.”

Newby did not immediately respond to a request for comment. The high court noted that justices do not typically comment on pending litigation.

Phil Strach, an attorney representing GOP lawmakers said in Wednesday’s hearing: "We don't believe that those provisions [of the state constitution] address partisan gerrymandering."

Attorney Allison Riggs, who is representing plaintiff Common Cause in the redistricting case, says that even though the state constitution doesn’t explicitly require fair elections, case law clearly does.

“I’ve certainly studied the history,” she said, “and there is not a suggestion anywhere that the failure to put ‘fair’ in the constitution means that there's a presupposition that elections will be run unfairly.”

Riggs says constitutional provisions have to be understood together in context.

“In cases interpreting free elections, there's frequently also an equal protection claim associated with that that really talks about how we have to treat people equally and fairly,” Riggs said. “Sometimes you can miss the forest for the trees.”

Schauf made the same point Wednesday in response to Newby.

“This court also has the equal protection clause, which Stephenson [v. Bartlett] interpreted to require substantially equal voting power, substantially equal legislative representation and equal representational influence,” Schauf said. “So we think you get to the same place.”

In the Stephenson case, the North Carolina Supreme Court held that the 2001 legislative redistricting plan violated the “whole county provision” of the state constitution by dividing counties into separate legislative districts.

UNC School of Law constitutional expert Bill Marshall explained that a lot of what people think of as “constitutional rights” are not in the text of federal or state constitutions. They’re judicial interpretations of those documents.

“For example, there's no provision in the [U.S.] Constitution that says ‘one person, one vote,’” he said. “People think it's in the Constitution, but it's not. It was interpreted, taking a look at various other constitutional provisions, to try to get an overall sense of what the Constitution means.”

He said state constitutions often vary in the language they use to call for the same rights, like freedom of speech or fair elections.

“You clearly look at the text, but you also take a look at the history surrounding that text, and you take a look at what's a meaningful interpretation of that text,” Marshall explained. “If everybody could vote but the results didn't count for anything, I don't think that would mean a free election.”

According to the National Conference of State Legislatures, "many state constitutions include provisions that explicitly address fairness and the administration of elections." Thirty states have some form of constitutional requirement that elections be “free,” and among those, 18 further require that elections be “equal” or “open.”


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